Fye Law Office Nebraska Issues Blog

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Wednesday, September 13, 2017

I recently read a Nebraska Supreme Court decision, In Re Estate of Gilbert Fuchs, Deceased, 297 Neb. 667 (2017) in which Mr. Fuchs's will wasn't located until quite some time after he passed away. The Court had to decide what to do with this situation, and whether the will could even be probated.

Apparently Mr. Fuchs kept his paperwork in quite a state of disarray, with paperwork in vehicles, in totes, and all over his home. When vehicles would be sold, the buyers would package up all of the paperwork to be returned to Mr. Fuchs's Personal Representative.

The family was pretty sure that Mr. Fuchs had a will, but couldn't locate a copy after contacting local attorneys and the County Court (as Wills can be filed with the County Courts in Nebraska for safekeeping). Ultimately the Personal Representative, Mr. Fuchs's son, found the original will several months after he passed away, and several months after the probate proceedings had begun. This will differed substantially from how the law of intestacy distributed Mr. Fuchs's property. Unfortunately for Mr. Fuchs, and for his intended beneficiaries, the will was located too late. In Nebraska, the Uniform Probate Code requires that probate proceedings be commenced within 3 years of the date of death. Informal probate proceedings alleging that Mr. Fuchs died intestate (without a will) were begun shortly after his death. But a request to probate the will was commenced more than 3 years after his death. This subsequent request was denied as coming too late, and the Supreme Court upheld the lower court's finding.

It's an interesting case, but what does this mean for the rest of us? Well, it means that we need to make sure that our wills and other important paperwork is kept in a secure area, and that our loved ones know where this important paperwork is kept. Because if our loved ones cannot locate our will, then our wishes may not be carried out upon our deaths.

Tuesday, June 6, 2017

This is a scenario that no one wants to find themselves in, but it unfortunately does happen. So your loved one is being/has been arrested, and you're trying to figure out what to do. Here are a few things to keep in mind and be aware of in the early stages of what appear to be likely criminal charges.

1. Don't interfere with law enforcement. If law enforcement is going to arrest someone, either on a warrant or because of conduct that they've been made aware of through an investigation, there is nothing that you can do to stop this. Don't hide a person that law enforcement is looking for, as that can be Obstructing a Peace Officer or Aiding and Abetting a Fugitive. Don't get in the middle of an arrest, as that can be Resisting Arrest or Obstructing. Let the arrest happen, and then deal with it after the fact. If you get in the middle of the situation, you can only make things worse, both for your loved one and for yourself.

2. Don't make statements to law enforcement, and advise your loved one not to either. I can't even tell you how many of my cases are proven largely by my client admitting to violations of the law, or by family members making statements that end up being harmful to my client. So the best course of action is to keep your mouth closed, and to advise your loved one being arrest to not make any statements either.

3. Hire an attorney as soon as possible. This should go without saying, but having an attorney involved at the earliest stages of a criminal case is important. Bond is set by the Court, and it's always helpful for the defendant to have an attorney to make a bond argument on his/her behalf. If there is no attorney involved, the defendant has to provide information to the Court directly, and could mistakenly make statements that can later be used against him/her. So the involvement of an attorney early on is important.

4. If the defendant can't afford an attorney, request a public defender as soon as possible. In most of the areas where I practice law, the public defenders are extremely qualified and excellent attorneys. So if a private attorney isn't in the cards financially, applying for the public defender is the next best option. And not delaying this application means that the public defender can begin working on the case as early as possible.

5. But don't think that a hired attorney or a PD can get a defendant out of jail in the middle of the night or on the weekend. In some low level cases, bonds are set by a schedule adopted in advance, so that people can post bonds and get out of jail right away. But for felonies or higher level misdemeanors, there aren't bond schedules. And it isn't required that defendants be brought before the Court for a bond setting until 48 hours. It simply isn't realistic to expect hired attorneys or PDs to be able to get defendants out of jail in the middle of the night or on weekends. Often we don't have the judge's cell phone number. And if we do, it won't do any good to make a call, as they're not going to set bond after a telephone call from one attorney. A hearing has to occur, where both the State and the defendant can make bond arguments. So don't expect middle of the night or weekend results. And don't buy into the hype from lawyers who tell you that they can achieve middle of the night or weekend results.

6. Be patient. I know that this is exactly the type of thing that people don't want to hear when their loved one has been arrested. But it's probably the single most important piece of advice. The wheels of justice turn slowly. Dismissals usually don't happen at the first hearing; and trials aren't immediate. It takes time to get discovery (police reports, photos, recordings, etc.) and plea offers. And it takes time for a criminal defense attorney to review this information and discuss it with a defendant. So even though it's terribly difficult, be patient.

Tuesday, May 16, 2017

I've written previously about speaking for court reporters, and the advice that I had then applies very much the same when speaking for interpreters. However, there are some differences. And there is more to working with an interpreter than simply speaking clearly. I thought it would be appropriate to devoting a blog post to this topic, as it comes up fairly regularly in my practice, but also would be useful information for other people as well.

#1: Speak slowly.
Most people speak too quickly, especially when they are nervous. People are more likely to be nervous when in court or in a deposition, and this is when interpreters are trying to convey every word that you say. Therefore, if the interpreter is going to be able to repeat everything in another language, you need to speak slowly. Chances are that you are probably still speaking more quickly than you think, anyway. This rule is even more important if you are using medical terminology or other specialized terms which the interpreter is not likely to encounter very often, or for which there may not be a direct translation and which may need to be explained to convey the meaning.

#2: Read even more slowly.

People read much more quickly than they typically speak. If the document that you are reading is important (and it probably is, or you wouldn't bother to read from it), then you should slow down while reading to make sure that the words are translated.

#3: Don't go off on tangents.

If the interpreter asks you to repeat something that you have said, do just that—repeat only what you said. Do not go off on a tangent explaining the concept or background story to the interpreter. The interpreter was not asking you to repeat yourself because s/he did not understand the concept, but only because s/he did not hear or understand the words that you said.

#4: Do not interrupt or speak over another person.

An interpreter can only take interpret the words of one speaker at a time. When people talk over one another or interrupt each other, the record becomes muddled and the interpreter cannot keep up. Wait until one person has finished speaking before you speak.

#5: Answer out loud, using real words.

Do not nod or shake your head, as an interpreter cannot convey this. Try to minimize mmm-hmm, hmm-mmm, uh-huh, and huh-uh, as these are often difficult to hear, and may lack direct translations. Use "yes," "no," and other real word verbal responses.

#6: Minimize the use of slang.

Slang often cannot be directly translated, or even conveyed in a meaningful way to speakers of other languages. Minimize the use of slang, making the interpreter's job easier, and making for language easier to understand by the listener.

#7: There is a difference between a translator and an interpreter.

Did you know this? I didn't until an interpreter explained the difference. A translator changes language from one to another in written form. An interpreter changes language from one to another in verbal form.

#8: Court certified interpreters really are better.

Interpreters who have gone through the process to become court certified interpreters really do a better job. They have the skills necessary to convey meaning from language to language, and understand that the role of an interpreter simply is to repeat what is said (to the extent possible). When it is possible to use a court certified interpreter, I recommend it.

#9: Interpreters are not lawyers, however.

So we cannot assume that interpreters understand legal concepts well enough to explain them if there is no direct translation. Some interpreters have been working in the court system that they do understand, but not all will. So attorneys need to ensure that they are explaining concepts, and not just trusting or assuming that the interpreter can or will.

Tuesday, May 9, 2017

It is common for non-profit organizations to host events or
fundraisers where they wish to serve alcohol. State laws will dictate what the
organization needs to do to be able to serve alcohol at these events. This
article will focus on the requirements in Nebraska for certain non-profit
organizations to apply for a liquor license.

In Nebraska, an organization that is planning to have
alcohol available at an event is required to get a liquor license, with only a
few very limited exceptions. In the vast majority of situations, if there will
be alcohol available for consumption or sale at the event, a license is
required. Obtaining a traditional liquor license can be a very involved and
costly process. Nebraska, though, provides a less intensive process for certain
non-profits that are seeking a liquor license for only one or a few events
throughout the year.

Non-profits that qualify, can apply for a Special Designated
License (SDL), instead of a more traditional liquor license. Normally, a liquor
license allows an organization to serve alcohol on an ongoing basis. The SDL,
though, approves liquor service for only a single event. In order to qualify for this less intensive
application, the non-profit organization must be 1) formed as a corporation
under state law, and 2) exempted from paying federal income tax (this is
commonly achieved by receiving 501(c)(3) status as explained in installment 6
in this series).

If the non-profit meets these two requirements, they are
able to apply for the SDL. The application is submitted to the Nebraska Liquor
Control Commission to determine whether it will be approved. In order for the
application to be approved, the non-profit must show that they are taking
certain precautions to ensure that alcohol is being served only to people aged
21 or older, and being served in a safe and responsible manner.

Tuesday, April 25, 2017

Once you have made the decision to start a non-profit
organization and completed the steps to officially form an entity (filing
Articles of Incorporation, for example), there are additional steps that may be
necessary. This article will explain some of those additional steps.

Apply for Federal Employer Identification Number

One of the next steps will be applying for an Employer
Identification Number (EIN or federal tax id). This is a unique number assigned
to the organization by the IRS. An EIN will be used for things like opening
bank accounts and identifying the organization for tax purposes. The
organization will complete a form called an SS-4, which can now be completed
online through the IRS website. If completed online, the organization can
receive the EIN immediately after the application is submitted.

Set Up EFTPS Account

Your organization may also need to set up an account with
the Electronic Federal Tax Payment System. This is a system for the
organization to deposit tax money withheld from any employees the organization
may have. This will include money withheld from employees’ paychecks for FICA
taxes and income taxes. The organization should automatically receive
instructions in the mail for setting up this account after they have received
their EIN.

Apply for State Identification Number

Even if you have received an EIN through the IRS, you may
still be required to obtain an additional tax identification number through the
state where your organization is located. Many states require the organization
to apply for this additional identification number for state tax purposes. This
is likely necessary if you will have employees that the organization will be
required to withhold state income tax for, or if you will be required to collect
a sales tax or other state tax. This can typically be done by submitting an
application for an identification number through the state’s department of revenue.

Additional State Requirements

There may be additional requirements that vary by state. For
example, in Nebraska, the organization may have to purchase a workers’
compensation insurance policy. This is an insurance policy that provides
benefits to employees who are injured during their employment. Unless the
organization meets certain exceptions, they may have to provide this type of
insurance for its employees or officers. Another example in Nebraska, is the
requirement that the organization complete an application through the
Department of Labor for unemployment insurance. If the organization will have
employees, they may be required to complete this to provide unemployment
benefits to employees.

This list provides information on some of the next steps
that the non-profit organization will need to take once they have officially
formed an entity. There may be additional requirements depending on the state
in which the organization is located, and the type and size of the
organization. To ensure that you have completed the necessary steps, submitted
the necessary applications, and created the necessary accounts, it is best to
speak with an attorney in your state.

Wednesday, April 12, 2017

The previous article in this series explained that one of
the benefits of a non-profit organization obtaining 501(c)(3) status, is that
contributions made by others are tax deductible. This means that the person or
business that donates (the donor), can deduct that amount from their taxable
income, which may help lower their tax burden. The non-profit that is receiving
the donation (the donee), and the donor, must comply with certain federal rules
regarding disclosures and recordkeeping. This article will explain some of
those requirements for cash contributions. It’s important to note that the
requirements discussed in this article are for cash contributions, and will
differ if the contribution is in the form of goods or services.

Requirements of Donor

To take the tax deduction, the donor is required to keep a
record of the contribution. For a cash contributions (which includes cash,
checks, electronics funds transfers, debit cards, credit cards, and payroll
deductions), the donor must keep one of the following: a bank record (canceled
check, bank statement or credit card statement); a receipt from the donee; or a
payroll deduction record. Simply keeping track in a check register will not be
enough, one of the above records must be retained in order to deduct the
contribution from the donor’s taxable income.

If the donor makes a cash contribution of $250 or more, they
must also get an acknowledgment from the donee. This acknowledgment is
explained in more detail below.

Requirements of Donee

If the donee receives a contribution of more than $75 from
one individual or business, they must provide a disclosure statement to the
donor. The disclosure must be written, must note the value of the contribution,
and must inform the donee that the contribution is tax-deductible. If the donee
does not provide this disclosure statement, the IRS may impose a fine on them.

As mentioned above, if the donee receives a cash
contribution of $250 or more, they must provide an acknowledgment to the donor.
The acknowledgment must meet the following requirements:

·It must be written;

·It must include the amount of cash contributed;

·It must indicate whether the donor received
goods or services for the contribution (including the value of the goods or
services); and

·It must be received by the donee before their
tax return for that year is due.

This article provides a general guideline of the disclosure
and record keeping requirements for cash contributions to non-profit
organizations that have qualified for tax-exempt status under 501(c)(3). There
may be additional requirements for larger cash contributions, and the
requirements for contributions of goods or services will differ significantly.
There are also additional rules on whether the donor can deduct these
contributions, and if they can, how much can be deducted. The extent to which
contribution is deductible will depend on each individual’s circumstances, so
it would be best to speak with an attorney or other tax professional to discuss
your specific situation.

Thursday, April 6, 2017

At Fye Law Office, we have some great staff. And we want our clients, potential clients, and friends to have the opportunity to learn a little bit about them, and to hear some advice and thoughts from them. Today, you get to meet Kristi, one of the legal secretaries in our office.

Tell us a little bit about yourself. My husband’s name is Brad and he works for KAAPA Ethanol at the Minden location. I have 2 children, Amie and Spencer. Amie is married to Kyle and has 4 children, JJ, Quincy, Halle, and Maddex. She is a para at the Holdrege Elementary School, and Kyle works for Husker Irrigation. Spencer is a Program Director for the YMCA at an elementary and a middle school in Lincoln. I have 3 step-children, Chelsea, who is the manager of a Caribou Coffee in Omaha, Grant, who is in the uniformed division of the Secret Service protecting Embassy Row in Washington D.C. and is getting married this summer, and Bryce who is an assistant manager of a Hy-Vee in Lincoln. I live on a farm near Axtell, but I am originally from the Holdrege area.How long have you worked for Fye Law Office?
A year and 5 months.

What is your work experience/education/training prior to coming to work for Fye Law Office? I worked for several years as a bookkeeper for a couple of local farmers and then took a position at CPI at their Funk location as a grain merchandiser and scale operator for 4 years before deciding to try something new and went to work for a friend of mine at her family’s car dealership in Holdrege. When the dealership sold, the opportunity to work for Fye Law Office was available and I decided to yet again try something new! I had absolutely no law background and Tana took a chance with me!What advice do you have to potential clients who are meeting with an attorney for the first time?
Be as upfront and honest as you can. Attorneys can only deal with the information they are given and it is better for them to find out right away then to have something pop-up in court and not be prepared to deal with the information.

What advice do you have to clients in working more effectively with their attorneys?
A couple of the main things would be to make sure your attorney has an updated address and phone number and if possible set up your voicemail so messages can be left. Another thing would be to not wait until the day or two before court to try and talk to your attorney. Their schedules fill rather quickly.

Do you have any memorable experiences since working at Fye Law Office that you'd like to share?
Without getting into much detail, I’ve had a client tell me they were going to sue me, which scared the crap out of me!! Other than that, probably just things that clients seem to think they need to share with us!

What do you like about working in a law office?
We have such a variety of cases that we work with and some of them can be very interesting. Our office is pretty laid back and we all get along so well!

What is your favorite type of case or matter to work on? Why?
I haven’t worked on many, but probably the adoptions. It’s just so rewarding to see these kids adopted by loving families and to finally have some stability in their lives.

Thanks to Kristi for sharing a little bit about herself, as well as her thoughts with all of you.